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THOUGHTS ON KING v. BURWELL

[Posted June 25, 2015] On a day that could have been “Obamacare’s Last Stand” (my fellow history fans will catch the reference to today’s anniversary of Col. Custer’s unfortunate foray into what the Lakota called Greasy Grass), the Supreme Court of the United States delivered a signal win to the Obama Administration. Today’s vote in King v. Burwell was 6-3, with the Chief Justice writing the majority opinion. Justice Scalia fires up his dissent pen, writing on behalf of Justices Thomas and Alito.

This essay will be abbreviated; there will be plenty of legal and political coverage of the decision elsewhere, and I don’t propose to compete with that. I’ll mention here a few items that caught my attention as I read the 42 pages that constitute the majority and dissenting opinions.

This appeal involves the Affordable Care Act’s tax-credit provision. The Act requires states to set up health-insurance exchanges. If a given state – say, for instance, Virginia – refuses to set up an exchange, then the Secretary of HHS is authorized to establish “such Exchange” in that state.

In order to make required insurance affordable, the Act provides federal tax credits to citizens who enroll in insurance coverage through “an Exchange established by the State under §1311” of the ACA. The question in this case is whether people in states with federally established exchanges are entitled to the tax credit. That matters a lot, because without the tax credit, millions of citizens in many states will not be able to afford insurance, defeating the legislation’s purpose.

The majority’s first task is to decide whether the phrase “established by the State” is ambiguous. On its face, it looks like it isn’t; the Act elsewhere defines State as including the fifty states of the Union, plus the District of Columbia, and the HHS Secretary doesn’t fit under that tent. If you look only at this clause, it seems that only state-established exchanges will generate the tax credit, and Virginians are out of luck.

But ambiguity can be latent as well as patent, and the Court takes that approach to resolve the case. It finds that when viewed in the context of the entire Act, the questioned phrase can include exchanges established by the feds in addition to those directly established by states. Given that key to the analytical kingdom, the majority finds that the proper way to interpret the provision is to include all exchanges.

The Court finds that this is the only way to avoid the very problem that prompted Congress – okay, the Democrats in Congress – to pass the act in the first place; if the subsidies fall, the entire program risks entering a “death spiral.” As the Chief concludes, “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.” The only way to carry out Congress’s purpose, he believes, is to ensure that subsidies apply across the nation.

Cue the Court’s current Great Dissenter, Justice Scalia.

I agree with Scalia sometimes; I disagree with him other times; but in most instances I enjoy his scathing dissents, if only for the bloodbath of words. Today’s effort is 21 pages of blasting the majority’s reasoning. But irrespective of the merits of this case, I found that this particular dissent turned me off at times; it was less legal analysis than simple ridicule. More than once, after he trashed a majority holding, I found myself thinking that, even where I agreed with him, he could have made his point in less offensive terms.

But I don’t get any input into his Honor’s approach, and I won’t even pretend to deny that he has some unassailable points. The majority unquestionably engages in some analytical contortions in order to make the case come out the way it does. But Scalia’s response to the majority’s strongest points – parts C and D of the slip opinion – is, in my view, half a step above name-calling. For example, he half-jokes that the Court has taken such good care of the Act in its decisions, it should be called “SCOTUScare.” And in his concluding paragraph, Scalia laments “the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorite.”

This, translated, is a charge that the majority has taken an outcome-driven approach to the legal analysis – deciding first how it wants the case to come out, and then figuring out how it can possibly get there, sweeping inconvenient facts and legal principles under the rug if necessary.

Does that sound backward to you? Perhaps you believe that the legal analysis should determine the outcome of appeals, instead of the desired outcome’s forcing the legal analysis, no matter how strained that reasoning has to be. Maybe you even believe that such an inversion of outcome over principle never actually happens in legal proceedings. If so, I won’t insist that you leave Fantasyland and come over to Earth; but trust me, this kind of thing happens here. It happens at One Capitol Street, it happens at Ninth and Franklin, and it even happens in your local traffic court. This is reality. I’m not saying that it happens in every case, or even a majority of the time; but it happens.

Meanwhile, it’ll be easy to predict some of the reaction to today’s decision. The far right will consign the Chief Justice to the category of Traitors to the Cause; the Obama Administration will breathe a sigh of relief; health-care providers’ stock prices will rise. It’s even conceivable that some of the handful of states that have created exchanges will abandon them, safe in the knowledge that Uncle Sam will cover them. Beyond that, I’d be too far into the realm of speculation.

Lost in today’s fuss over the ACA is the other decision handed down today, in Texas Dept. of Housing v. Inclusive CommunitiesProject. For those who handle housing discrimination claims, this case has massive importance; the Court held that a plaintiff can state a claim based on disparate impact, without proving a discriminatory purpose. If you don’t practice in this field, trust me: this is a huge decision. It’s also a bit of a surprise, as I had expected the Court to rule the other way.

So, what’s left of this highly entertaining Term? There are five still-undecided cases remaining on the Court’s docket. The highest-profile one is Obergefell v.Hodges, the appeal involving same-sex marriage. That one looks likely to come down as a 5-4 split, with Justice Kennedy once again flexing his muscles as the most powerful person in our government, since he quite often gets to decide what American law is. We should also see a decision in an important redistricting case from Arizona, deciding whether the act of redistricting is inherently legislative, so it can’t be delegated to an independent commission.

In order to close out the usual end-of-Term rush, the Court will hand down decisions tomorrow and Monday. If you’re holding your breath waiting for it, my best guess is that Obergefell will come down on Monday.